Laws governing corporations
created by: special laws or charters—
Corporations created by special
laws (like the National Grains Authority) or by
charters (like the PNB, DBP, Land Bank, Veterans
Bank, Amanah Bank or even the Central Bank) are
governed:
(1) Primarily,
by the special laws or charters creating such
corporations; and
(2) Supplementarily (or in case of deficiency of such
special laws or charters), by the provisions of this
Corporation Code, insofar as they are applicable.
“Insofar as they are applicable” should mean if the
provisions of the Corporation Code are not
inconsistent with the special laws or charters, or
are not contrary to the nature or character of the
corporation concerned.
Sec. 5. Corporators and
incorporators, stockholders and members.—
Corporators are those who compose a corporation,
whether as stockholders or members. Incorporators
are those stockholders or members mentioned in the
articles of incorporation as originally forming and
composing the corporation and who are signatories
thereof.
Corporators in a stock
corporation are called stockholders or shareholders.
Corporators in a non-stock corporation are, called
members.
Components of a corporation—
The components of a corporation
under the above section are the following:
(1)
Corporators, those who compose a corporation,
whether as stockholders or members, at any time.
(2)
Incorporators, those stockholders or members
mentioned in the articles of incorporation as
originally forming and composing the corporation and
are signatories to said articles of incorporation;
they are the pioneers or originators of the
corporation.
(3) Stockholders
or shareholders, are Corporators in a stock
corporation.
(4)
Members, are Corporations in a non-stock corporation.
Under the old Corporation Law, a member (one who
does not own stock) may exist as incorporator in a
stock corporation. This is no longer true in this
Corporation Code. It is now required that all
incorporators in a stock corporation must subscribe
to or own, stock in such corporation. (Sec. 10,
infra).
Articles of incorporation
cannot be amended to include additional
incorporators—
The articles of incorporation of an existing
corporation cannot be amended so as to include
additional incorporators. Incorporators who
originally form a corporation are always the
pioneers even if they subsequently sell their
shareholdings to others. New stockholders (after
incorporation) cannot be incorporators. Thus, it was
opined that the articles of incorporation of an
existing corporation cannot be amended by deleting
the name of an incorporator and substituting
therefore the name of another person. (SEC Opinion
dated Sept. 4, 1969.)
Only natural persons can be incorporators—
The above section of the Corporation Code has not
altered the settled rule that only natural persons
(not suffering from incapacity) can be
incorporators. A corporation cannot be an
incorporator unless permitted by law as in the case
of an established cooperative which could be an
incorporator of a rural bank. But a corporation or
any juridical entity like a partnership can own
stocks in an existing corporation.
Promoter, defined—
A promoter is one who brings together the persons
who become interested in the enterprise, and in
procuring subscriptions and sets in motion the
machinery which leads to the formation of the
corporation itself. (Dickerman vs. Northern Trust
Co., 176 U. S. 203) Activities of the promoter may
include lending of money, rendition of advice,
advance of incorporation and initial expenses and
assistance in the selection and acquisition of
properties or in the solicitation of subscriptions.
(Rohrlich, p. 41)
All the promoters of a venture are, amongst,
themselves, joint venturers, and, as such, they are
under the equitable restraints imposed upon
fiduciaries when dealing with the common project.
Promoters’ contracts are usually adopted by the
corporation. In the United States, the third-party
contracting is still accorded the election to sue
the promoter personally but this is true only in the
absence of novation or appropriate limitations in
the agreement. (Rohrlich, pp. 52-53) Failure on the
part of the promoter to complete the incorporation
does not relieve him from his contract liabilities.
(Trumbo vs. Back of Berkerly, 176 P. 2d 376) And he
is personally liable, whether or not the corporation
is organized for any fraud in making the contract.
(Noble vs. McKinley, 72 NYS 2d 515.)
A purchaser of a
condominium unit who has not paid in full the
purchase price is not, under a Master Deed, a
stockholder of a condominium corporation—
Petitioner, a condominium corporation within the
meaning of the Condominium Act in relation to a duly
registered Amended Master Deed, filed separate suits
against private respondents for collection of
assessments. levied on their respective units in the
condominium which they bought in installments and
are not yet fully paid. Both complaints, one
originally filed with respondent Court of First
Instance and the other appealed to it from the city
Court, were dismissed by respondent court on the
ground that pursuant to Section 2 of the Condominium
Act, private respondents were “holder(s) of separate
interest(s)” and consequently shareholders of the
petitioner condominium corporation, and that
therefore, these cases “should be properly filed
with the Securities and Exchange Commission which
has exclusive original jurisdiction over
controversies arising between shareholders of the
corporation.”
On certiorari, the Supreme Court held, that the
Condominium Act leaves to the Master Deed the
determination of when the share- holding in the
condominium corporation will be transferred to the
purchaser of a unit, which, in this case, is upon
full payment by the buyer of the purchase price at
which time he also becomes the owner of the unit;
and that the instant case for collection cannot be a
controversy arising out of intra-corporate relation
between stockholders since private respondents, who
have not yet fully paid the purchase price of their
units, are not shareholders.
The assailed orders were set aside and the cases
tried on the merits. (See Sunset View Condominium
Corp. vs. Hon. Jose C. Campos, Jr., G.R. No. 52361,
April 27, 1981; G.G. Vol. 78, No. 5, p.477)
Said the Supreme Court in
the aforestated case:
“The share of stock appurtenant to the unit will be
transferred accordingly to the purchaser of the unit
only upon full payment of the purchase price at
which time he will also become the owner of the
unit. Consequently, even under the contract, it is
only the owner of a unit who is a shareholder of the
Condominium Corporation. Inasmuch as ownership is
conveyed only upon full payment of the purchase
price, it necessarily follows that a purchaser of a
unit who has not paid the full purchase price
thereof is not the owner of the unit and
consequently is not a shareholder of the Condominium
Corporation.”
“Inasmuch as the private respondents are not
shareholders of the petitioner condominium
corporation, the instant cases for collection cannot
be a ‘controversy arising out of intra-corporate or
partnership relations between and among
stockholders, members or associations; between any
or all of them and the corporation, partnership or
association of which they are stockholders, members
or associates respectively’ which controversies are
under the original and exclusive jurisdiction of the
Securities and Exchange Commission pursuant to
Section 5 (b) of PD No. 902-A. x x x” (Ibid.)
Sec. 6. Classification of shares.—The shares of
stock in corporations may be divided into classes or
series of shares, or both, any of which classes or
series of shares may have such rights, privileges or
restrictions as may be stated in the articles of
incorporation; Provided, That no share may be
deprived of voting rights except those classified
and issued as “preferred” or “redeemable” shares,
unless otherwise provided in this Code; Provided,
further, That there shall always be a class or
series of shares which have complete voting rights.
Any or all of the shares or series of shares may
have a par value or have no par value as may be
provided for in the articles of incorporation;
Provided, however, That banks, trust companies,
insurance companies, public utilities, and building
and loan associations shall not be permitted to
issue no-par value shares of stock.
Preferred shares of stock issued by any corporation
may be given preference in the distribution of the
assets of the corporation in case of liquidation and
in the distribution of dividends, or such other
preferences as may be stated in the articles of
incorporation which are not violative of the
provisions of this Code; Provided, That preferred
shares of stock may be issued only with a stated par
value. The Board of Directors,
Next Pages
|
